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Other Recent Developments

July 2017

France's fee for temporary foreign workers

It has been reported that from January 2018 France will impose a €40 fee on temporary foreign workers as part of its implemention of the EU Posting of Workers Directive into domestic law. This has proved to be a controversial measure and guidance is yet to be provided on how this will apply to the transport sector: for example, will drivers be obliged to pay the fee annually or for each trip they make through France? (Source: The Loadstar)

Upcoming changes to BIFA's standard conditions

BIFA has recently announced changes to its standard trading conditions. The amendments, which are due to come into effect on 1 October 2017, include:

a warranty by the customer that the verified gross mass of a container (provided in accordance with the SOLAS Convention) is accurate;

the addition of an acceleration clause, which provides for all unpaid invoices to become immediately owing if the customer defaults. (This may be important in relation to the exercise of any lien.); and

the option for companies using the trading conditions to commence claims against customers in arbitration proceedings, which makes it easier to pursue customers based in jurisdictions that do not recognise English jurisdiction clauses or do not provide for the enforcement of English court judgments. (Source: BIFAlink)

Incoterms & assumptions about transfer of title to goods

It is often emphasised that Incoterms do not expressly address the transfer of title to goods, only the transfer of risk in the goods. However, the use of particular Incoterms can give rise to certain assumptions about when the parties intend to transfer title to goods. We were recently instructed by the seller of goods transported on CIF terms and successfully argued against an administrator that it was the parties’ legally-binding intention that title was not to be transferred until the seller was paid. This allowed our unpaid client to reclaim its goods from the buyer.

Amendments to the Maritime Labour Convention

In January, amendments to the Maritime Labour Convention came into force. The amendments oblige ship owners to have in place insurance covering claims for abandonment of seafarers and claims by seafarers for death or personal injury arising from occupational illnesses and hazards. (Source: IMO)

Meaning of "all reasonable endeavours"

The High Court (Astor Management AG v Atalaya Mining Plc) has recently considered the meaning of “all reasonable endeavours”. We frequently encounter these types of obligations in the transport sector. As this case makes clear, this form of words can give rise to a serious legal obligation, which the courts will look to enforce even if the scope of the obligation is uncertain. As the court emphasised: “The role of the court in a commercial dispute is to give legal effect to what the parties have agreed, not to throw its hands in the air and refuse to do so because the parties have not made its task easy.” A more detailed case-note is contained in Construct, Prettys’ construction newsletter.

Costs consequences of unreasonable response to mediation proposal

In Thakkar v Patel the Court of Appeal upheld a costs order that required the defendant to pay 75% of the claimant’s costs because the defendant was “slow to respond to letters and raised all sorts of difficulties” in response to a proposal to mediate. “The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction. In the present case, the costs sanction was severe, but not so severe that this court should intervene.” A more detailed case note is contained in Construct.

Establishment of UK subsidiaries for EU businesses

According to a survey by the Chartered Institute of Procurement and Supply, in light of the referendum in favour of leaving the EU nearly a third of UK businesses with suppliers in the EU are looking for UK suppliers to replace suppliers based in Europe. Our experience is that some European companies are already looking to establish new businesses or subsidiaries in the UK. (Source: Chartered Institute of Procurement and Supply)